Title I Technical Assistance Manual

I. TITLE I: AN OVERVIEW OF LEGAL REQUIREMENTS

This chapter of the manual provides a brief overview of the basic requirements of Title I of the ADA. Following chapters look at these and other requirements in more detail and illustrate how they apply to specific employment practices.

Who Must Comply with Title I of the ADA?

Private employers, state and local governments, employment agencies, labor unions, and joint labor-management committees must comply with Title I of the ADA. The ADA calls these "covered entities." For simplicity, this manual generally refers to all covered entities as "employers," except where there is a specific reason to emphasize the responsibilities of a particular type of entity.

An employer cannot discriminate against qualified applicants and employees on the basis of disability. The ADA's requirements ultimately will apply to employers with 15 or more employees. To give smaller employers more time to prepare for compliance, coverage is phased in two steps as follows:

• Number of employees: 25 or more Coverage begins: July 26, 1992

• Number of employees: 15 or more Coverage begins: July 26, 1994

Covered employers are those who have 25 or more employees (1992) or 15 or more employees (1994), including part-time employees, working for them for 20 or more calendar weeks in the current or preceding calendar year. The ADA's definition of "employee" includes U.S. citizens who work for American companies, their subsidiaries, or firms controlled by Americans outside the USA. However, the Act provides an exemption from coverage for any action in compliance with the ADA which would violate the law of the foreign country in which a workplace is located.

(Note that state and local governments, regardless of size, are covered by employment nondiscrimination requirements under Title II of the ADA as of January 26, 1992. See Coordination of Overlapping Federal Requirements below.)

The definition of "employer" includes persons who are "agents" of the employer, such as managers, supervisors, foremen, or others who act for the employer, such as agencies used to conduct background checks on candidates. Therefore, the employer is responsible for actions of such persons that may violate the law. These coverage requirements are similar to those of Title VII of the Civil Rights Act of 1964.

Special Situations

Religious organizations are covered by the ADA, but they may give employment preference to people of their own religion or religious organization.

For example: A church organization could require that its employees be members of its religion. However, it could not discriminate in employment on the basis of disability against members of its religion.

The legislative branch of the U.S. Government is covered by the ADA, but is governed by different enforcement procedures established by the Congress for its employees.

Certain individuals appointed by elected officials of state and local governments also are covered by the special enforcement procedures established for Congressional employees.

Who Is Exempt?

Executive agencies of the U.S. Government are exempt from the ADA, but these agencies are covered by similar nondiscrimination requirements and additional affirmative employment requirements under Section 501 of the Rehabilitation Act of 1973. Also exempted from the ADA (as they are from Title VII of the Civil Rights Act) are corporations fully owned by the U.S. Government, Indian tribes, and bona fide private membership clubs that are not labor organizations and that are exempt from taxation under the Internal Revenue Code.

Who Is Protected by Title I?

The ADA prohibits employment discrimination against "qualified individuals with disabilities." A qualified individual with a disability is:

An individual with a disability who meets the skill, experience, education, and other job-related requirements of a position held or desired, and who, with or without reasonable accommodation, can perform the essential functions of a job.

To understand who is and who is not protected by the ADA, it is first necessary to understand the Act's definition of an "individual with a disability" and then determine if the individual meets the Act's definition of a "qualified individual with a disability."

The ADA definition of individual with a disability is very specific. A person with a "disability" is an individual who:

• has a physical or mental impairment that substantially limits one or more of his/her major life activities;

• has a record of such an impairment; or

• is regarded as having such an impairment.

(See Chapter II.)

Individuals Specifically not Protected by the ADA

The ADA specifically states that certain individuals are not protected by its provisions:

Persons who currently use drugs illegally

Individuals who currently use drugs illegally are not individuals with disabilities protected under the Act when an employer takes action because of their continued use of drugs. This includes people who use prescription drugs illegally as well as those who use illegal drugs.

However, people who have been rehabilitated and do not currently use drugs illegally, or who are in the process of completing a rehabilitation program may be protected by the ADA. (See Chapter VIII.)

Other specific exclusions

The Act states that homosexuality and bisexuality are not impairments and therefore are not disabilities under the ADA. In addition, the Act specifically excludes a number of behavior disorders from the definition of "individual with a disability." (See Chapter II.)

Employment Practices Regulated by Title I of the ADA

Employers cannot discriminate against people with disabilities in regard to any employment practices or terms, conditions, and privileges of employment. This prohibition covers all aspects of the employment process, including:

• application

• promotion

• testing

• medical examinations

• hiring

• layoff/recall

• assignments

• termination

• evaluation

• compensation

• disciplinary actions

• leave

• training

• benefits

Actions which Constitute Discrimination

1. The ADA specifies types of actions that may constitute discrimination. These actions are discussed more fully in the following chapters, as indicated:

2. Limiting, segregating, or classifying a job applicant or employee in a way that adversely affects employment opportunities for the applicant or employee because of his or her disability. (See Chapter VII.)

3. Denying employment opportunities to a qualified individual because s/he has a relationship or association with a person with a disability. (See Chapter VII.)

4. Refusing to make reasonable accommodation to the known physical or mental limitations of a qualified applicant or employee with a disability, unless the accommodation would pose an undue hardship on the business. (See Chapters III. and VII.)

5. Using qualification standards, employment tests, or other selection criteria that screen out or tend to screen out an individual with a disability unless they are job-related and necessary for the business. (See Chapter IV.)

6. Failing to use employment tests in the most effective manner to measure actual abilities. Tests must accurately reflect the skills, aptitude, or other factors being measured, and not the impaired sensory, manual, or speaking skills of an employee or applicant with a disability (unless those are the skills the test is designed to measure). (See Chapter V.)

7. Denying an employment opportunity to a qualified individual because s/he has a relationship or association with an individual with a disability. (See Chapter VII.)

8. Discriminating against an individual because s/he has opposed an employment practice of the employer or filed a complaint, testified, assisted, or participated in an investigation, proceeding, or hearing to enforce provisions of the Act. (See Chapter X.)

Reasonable Accommodation and the Undue Hardship Limitation

Reasonable Accommodation

Reasonable accommodation is a critical component of the ADA's assurance of nondiscrimination. Reasonable accommodation is any change in the work environment or in the way things are usually done that results in equal employment opportunity for an individual with a disability.

An employer must make a reasonable accommodation to the known physical or mental limitations of a qualified applicant or employee with a disability unless it can show that the accommodation would cause an undue hardship on the operation of its business.

Some examples of reasonable accommodation include:

• making existing facilities used by employees readily accessible to, and usable by, an individual with a disability;

• job restructuring;

• modifying work schedules;

• reassignment to a vacant position;

• acquiring or modifying equipment or devices;

• adjusting or modifying examinations, training materials, or policies;

• providing qualified readers or interpreters.

An employer is not required to lower quality or quantity standards to make an accommodation. Nor is an employer obligated to provide personal use items, such as glasses or hearing aids, as accommodations.

Undue Hardship

An employer is not required to provide an accommodation if it will impose an undue hardship on the operation of its business. Undue hardship is defined by the ADA as an action that is:

"Excessively costly, extensive, substantial, or disruptive, or that would fundamentally alter the nature or operation of the business."

In determining undue hardship, factors to be considered include the nature and cost of the accommodation in relation to the size, the financial resources, the nature and structure of the employer's operation, as well as the impact of the accommodation on the specific facility providing the accommodation. (See Chapter III.)

Health or Safety Defense

An employer may require that an individual not pose a "direct threat" to the health or safety of himself/herself or others. A health or safety risk can only be considered if it is "a significant risk of substantial harm." Employers cannot deny an employment opportunity merely because of a slightly increased risk. An assessment of "direct threat" must be strictly based on valid medical analyses and/or other objective evidence, and not on speculation. Like any qualification standard, this requirement must apply to all applicants and employees, not just to people with disabilities.

If an individual appears to pose a direct threat because of a disability, the employer must first try to eliminate or reduce the risk to an acceptable level with reasonable accommodation. If an effective accommodation cannot be found, the employer may refuse to hire an applicant or discharge an employee who poses a direct threat. (See Chapter IV.)

Pre-employment Inquiries and Medical Examinations

An employer may not ask a job applicant about the existence, nature, or severity of a disability. Applicants may be asked about their ability to perform specific job functions. An employer may not make medical inquiries or conduct a medical examination until after a job offer has been made. A job offer may be conditioned on the results of a medical examination or inquiry, but only if this is required for all entering employees in similar jobs. Medical examinations of employees must be job-related and consistent with the employer's business needs. (See Chapters V. and VI.)

Drug and Alcohol Use

It is not a violation of the ADA for employers to use drug tests to find out if applicants or employees are currently illegally using drugs. Tests for illegal use of drugs are not subject to the ADA's restrictions on medical examinations. Employers may hold illegal users of drugs and alcoholics to the same performance and conduct standards as other employees. (See Chapter VIII.)

Enforcement and Remedies

The U.S. Equal Employment Opportunity Commission (EEOC) has responsibility for enforcing compliance with Title I of the ADA. An individual with a disability who believes that (s)he has been discriminated against in employment can file a charge with EEOC. The procedures for processing charges of discrimination under the ADA are the same as those under Title VII of the Civil Rights Act of 1964. (See Chapter X.)

Remedies that may be required of an employer who is found to have discriminated against an applicant or employee with a disability include compensatory and punitive damages, back pay, front pay, restored benefits, attorney's fees, reasonable accommodation, reinstatement, and job offers. (See Chapter X.)

Posting Notices

An employer must post notices concerning the provisions of the ADA. The notices must be accessible, as needed, to persons with visual or other reading disabilities. A new equal employment opportunity (EEO) poster, containing ADA provisions and other federal employment nondiscrimination provisions may be obtained by writing EEOC at 1801 L Street N.W., Washington, D.C., 20507, or calling 1-800-669-EEOC or 1-800-800-3302 (TDD).

Coordination of Overlapping Federal Requirements

Employers covered by Title I of the ADA also may be covered by other federal requirements that prohibit discrimination on the basis of disability. The ADA directs the agencies with enforcement authority for these legal requirements to coordinate their activities to prevent duplication and avoid conflicting standards. Overlapping requirements exist for both public and private employers.

Title II of the ADA, enforced by the U.S. Department of Justice, prohibits discrimination in all state and local government programs and activities, including employment, after January 26, 1992.

The Department of Justice regulations implementing Title II provide that EEOC's Title I regulations will constitute the employment nondiscrimination requirements for those state and local governments covered by Title I (governments with 25 or more employees after July 26, 1992; governments with 15 or more employees after July 26, 1994). If a government is not covered by Title I, or until it is covered, the Title II employment nondiscrimination requirements will be those in the Department of Justice coordination regulations applicable to federally assisted programs under Section 504 of the Rehabilitation Act of 1973, which prohibits discrimination on the basis of disability by recipients of federal financial assistance.

Section 504 employment requirements in most respects are the same as those of Title I, because the ADA was based on the Section 504 regulatory requirements. (Note that governments receiving federal financial assistance, as well as federally funded private entities, will continue to be covered by Section 504.)

In addition, some private employers are covered by Section 503 of the Rehabilitation Act. Section 503 requires nondiscrimination and affirmative action by federal contractors and subcontractors to employ and advance individuals with disabilities, and is enforced by the Office of Federal Contract Compliance Programs (OFCCP) in the U.S. Department of Labor.

The EEOC, the Department of Labor, the Department of Justice and the other agencies that enforce Section 504 (i.e., Federal agencies with programs of financial assistance) will coordinate their enforcement efforts under the ADA and the Rehabilitation Act, to assure consistent standards and to eliminate unnecessary duplication. (See Chapter X. For further information see Resource Directory: "Federal Agencies that Enforce Other Laws Prohibiting Discrimination on the Basis of Disability.")